FILED: NEW YORK COUNTY CLERK 08/22/ :01 AM INDEX NO /2017 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 08/22/2017

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X GENESIS REOC COMPANY, LLC, JAZZ REAL TY II, LLC, individually and on behalf of, GENESIS REOC COMP ANY, LLC and JAZZ GENESIS II, LLC, and JAZZ GENESIS II, LLC, Plaintiffs, Index No /2017 Motion Sequence No. 001 ATTORNEY. AFFIRMATION -against- STUART D. POPPEL, ESQ., POPPEL LAW LLC, BERMAN INDICTOR & POPPEL LLP, BERMAN INDICTOR LLP, individually and as the successor in interest to BERMAN INDICTOR & POPPEL LLP, CHARLES E. WILLIAMS, III, ESQ., and PECKAR & ABRAMSON PC, Defendants X BRUCE J. RESSLER, an attorney duly admitted to practice in the State of New York, hereby affirms under penalty of perjury pursuant to CPLR 2106, as follows: 1. I am a member of the firm of RESSLER & RESSLER, attorneys for Plaintiffs in the above-captioned matter. Except as otherwise stated, the facts set forth herein are based on my personal knowledge and a review of the file maintained by my office. 2. I submit this affirmation in opposition to the Motion for Leave to Intervene pursuant to CPLR (Motion Sequence No. 001), filed by Karim Hutson and Genesis Member, LLC. 3. The instant action was commenced by Summons with Notice, filed on July 26, 2017 in the Supreme Court of the State of New York, County of New York, against Plaintiffs' 1 1 of 5

2 former attorneys, Stuart D. Poppel, Esq. and Charles E. Williams, III, Esq,.and their respective law firms, based on claims for legal malpractice, conflict of interest, breach of fiduciary duty, misrepresentation, tortious interference and related causes of action (hereinafter, the "Legal Malpractice Action"). A true and accurate stamp-filed copy of the Summons with Notice is attached as Exhibit 1. The Summons with Notice was served on each of the defendants in the Legal Malpractice Action, but the attorneys for all of the defendants have stipulated that service of the complaint be postponed until September 29, That stipulation is now before the Court to be So Ordered. (See Exhibit 2.) 4. On July 26, 2017, hours after the Summons with Notice was filed, Karim Hutson and Genesis Member, LLC (together "Hutson") made a Motion to the Arbitrator' seeking an Order restraining Plaintiffs from seeking an injunction in the Legal Malpractice Action that would preclude Messrs. Poppel and Williams from testifying at the Arbitration. 5. On July 31, 2017, Plaintiffs responded and advised the Arbitrator, in writing, that Hutson had misinterpreted the Summons with Notice and that Plaintiffs have not and will not be seeking any order in the Legal Malpractice Action to preclude Messrs. Poppel or Williams from testifying as a witness in connection with the Arbitration. These assurances were insufficient for Hutson, who demanded that the Arbitrator require the same representation be made by Plaintiffs' legal malpractice counsel. Later that day, the Arbitrator advised the parties that a written representation by counsel in the legal malpractice case would- be necessary to avoid any 1 Karim Hutson, Genesis Member LLC, Genesis REOC Company, LLC ("REOC"), and Jazz Realty II, LLC ("Jazz Realty") are parties to an ongoing arbitration proceeding entitled Karim A. Hutson and Genesis Member, LLC vs. Jazz Realty IL LLC (Case No (American Arbitration Association)) (the "Arbitration"), with Lawrence R. Kulig arbitrator (the "Arbitrator"). As part of the Arbitration, Mr. Hutson and his company, Genesis Member LLC have asserted claims against Jazz Realty; and REOC and Jazz Realty have asserted claims against Mr. Hutson and his company, Genesis Member LLC. The Arbitration arises from an action also pending before this Court, Genesis REOC Company, LLC, et al. v. Genesis Companies LLC, et al. (Index No ). 2 2 of 5

3 miscommunication, and so that the state court judge understands that the Legal Malpractice, Action and the relief sought has no bearing on the potential witness testimony in the Arbitration. 6. Without waiting for that further assurance, on July 31, 2017, Hutson asked this Court for the same relief, and moved by Order to Show Cause for leave to intervene in the Legal Malpractice Action so as to preclude Plaintiffs from seeking to restrain Poppel and Williams from testifying in the Arbitration. Hutson did not disclose to this Court that he was seeking the same relief in the Arbitration proceeding, or that Plaintiffs had already consented to the relief sought. 7. By letter dated August 1, 2017, Plaintiffs' counsel in the Legal Malpractice Action gave further written assurance to the Arbitrator and Hutson that they had not and will not seek an order precluding Messrs. Poppel and Williams from testifying in the Arbitration. A true and accurate copy of that letter is attached hereto as Exhibit 3. In short, Plaintiffs consented to the relief sought and there was no need to further burden the Arbitrator or this Court. 8. The next day, August 2, 2017, Hutson filed a Supplemental Motion with the Arbitrator, expanding the relief sought to include an agreement by REOC to hold the prosecution of its Legal Malpractice Claims in abeyance pending a determination by the Arbitrator as to whether Hutson was properly removed as Manager of REOC. Again, Plaintiffs promptly agreed to Hutson 's demands. Indeed, on August 3, 2017 Plaintiffs advised the Arbitrator that REOC was willing to enter into a stipulation whereby REOC's legal malpractice and related claims would be held in abeyance pending the Arbitrator's determination as to whether Hutson was properly removed as Manager ofreoc, provided that all ofreoc's claims and causes of action were preserved, and further provided that nothing would impair the right of the other Plaintiffs from proceeding with their claims in the Legal Malpractice action, which are beyond the 3 3 of 5

4 jurisdiction of the Arbitration. On August 7, 201 7, Plaintiffs submitted a proposed Stipulation to the Arbitrator memorializing these assurances. Again, these written assurances were insufficient for Hutson, who insisted that they be embodied in an Order by the Arbitrator. 9. To put the matter to rest, the Arbitrator entered an Order, dated August 8, 2017 ("August 8 Order"), a true and accurate copy is attached hereto as Exhibit 4. In the August 8 Order, the Arbitrator: (a) Finds that the Legal Malpractice Action and the claims asserted therein ("Legal Malpractice Claims") are not, and will not be, within the jurisdiction of the Arbitration; (b) Directs REOC to temporarily hold the prosecution of its Legal Malpractice Claims in abeyance, without prejudice, until the Arbitrator determines whether Hutson was properly removed as Manager of REOC; ( c) Directs that nothing in the Order shall impair the rights of Jazz Realty and Jazz Genesis to proceed with the prosecution of their pending Legal Malpractice Claims or otherwise prejudice those claims; ( d) Directs that Messrs. Poppel and Williams shall be permitted to testify in the Arbitration or otherwise assist Hutson with the preparation of its case, subject to the normal rules and procedures for cross-examination and interrogation at the arbitration hearing; and ( e) Finds that, based upon the terms of his August 8 Order, the prosection of the Legal Malpractice Action will not "interfere with the Arbitration or the matters and issues to be decided therein." 10. Even though the August 8 Order renders the Motion to Intervene entirely moot, and eliminates any justiciable controversy, Hutson failed to withdraw the Motion to Intervene or even alert this Court to what had transpired. 11. Finally, shortly after the filing of the Summons with Notice, Hutson advised the Arbitrator that Poppel and Williams had resigned as his counsel. To the best of my knowledge, Hutson has also failed to advise this Court of that critical fact. 4 4 of 5

5 Dated: Augus(i 2017 RESSLER& RESSLER Attorneys for Plaintiffs 48 Wall Street New York, NY (212) of 5